STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

RICK JACKSON, Complainant

MANSUR TRUCKING INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200002699


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed February 19, 2002
jacksri2 . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The complainant, Rick Jackson, alleged in a complaint filed with the Equal Rights Division that he responded to the respondent's ad for drivers, that he spoke to Dave Mansur on April 15, 2000, and that Mansur refused him employment because of his felony conviction record. Following an initial determination finding probable cause to believe that the respondent had violated the Act as alleged, the matter was certified to a hearing on the merits.

The complainant, but not the respondent appeared for the scheduled 9 a.m. hearing on January 11, 2001. By way of a letter and affidavit the respondent's safety director, Deborah Squire, explained the reason for the respondent's failure to appear at the hearing on January 11. Squire stated that Mansur had originally planned to attend the hearing but it was decided that she would attend the hearing so that Mansur could attend to another business matter. Squire stated that during the night of January 10 and morning of January 11 her daughter had the flu and was vomiting. Squire stated that she is a single parent and that her daughter's illness caused her to forget about the hearing. Finally, Squire's affidavit indicates that had her daughter's illness not caused her to forget about the hearing, she would have contacted Mansur to have him attend the hearing. Based on the above, the ALJ determined that the respondent had shown good cause for its failure to appear, and reopened the hearing.

At the continued hearing on March 1, 2001, Mansur denied that the alleged April 2000 phone conversation with the complainant ever occurred. Further, Mansur asserted that the respondent does not have a policy of not hiring drivers with conviction records.

Noting a lack of evidence to corroborate the alleged phone conversation, that Jackson's credibility suffered a bit due to the lapse of about four months between the alleged conversation and the filing of his complaint of discrimination, and Mansur's flat denial that the alleged conversation ever occurred, the ALJ found no reason to give Jackson's assertion more credence than Mansur's denial. Further, the ALJ reasoned that since it was Jackson's burden to prove that it was more likely than not that the conversation occurred as alleged and that Jackson at best showed a 50-50 chance that it did take place, there could be no finding of liability against the respondent.

In his petition for review of the ALJ's decision, Jackson claims that the ALJ erred in allowing the respondent a second opportunity to appear at the hearing. Jackson apparently argues that Squire did not timely notify the department of the respondent's inability to appear at the January 11 hearing. Further, he argues that the respondent should have arranged for another representative to appear at the hearing.  These arguments fail.  Wisconsin Administrative Code § DWD 218.18(4) provides, in relevant part, that "If, within 10 days after the date of hearing, any party who failed to appear shows good cause in writing for the failure to appear, the administrative law judge may reopen the hearing."  Squire contacted the ALJ about the respondent missing the hearing on January 16, 2001, and in written correspondence filed with the division on January 19, 2001, she explained the reason for the respondent's failure to appear at the hearing. Squire complied with what was required of the respondent under § DWD 218.18(4). As for making arrangements for another representative to appear at the hearing, that option did not present itself in this case. Squire's affidavit indicates that her preoccupation with her daughter's illness caused her to completely forget about the hearing.

Addressing the merits of his claim, Jackson apparently takes issue with the ALJ's belief that his credibility suffered a bit due to the lapse of about four months between the alleged conversation and the filing of his complaint of discrimination. The fact of the matter is, however, the ALJ found no reason to give Jackson's assertions about his alleged April 2000 telephone conversation with Mansur any more credence than Mansur's denial that said alleged conversation ever occurred. The ALJ was present at the hearing and could observe the witnesses' demeanor for purposes of determining credibility. The commission has found no compelling reason to question the ALJ's assessment of witness credibility.

Apparently as support for his claim of discrimination, Jackson argues that the Initial Determination found probable cause to believe that discrimination occurred on the basis of the Equal Rights Officer's (ERO) finding that Squire had asked the ERO if the respondent couldn't reject applicants with conviction records. Jackson made reference to the Initial Determination at the hearing. This argument fails. First, assuming this had been the basis for the finding of probable cause (a fact that has not been established) the Initial Determination was neither offered nor received as evidence at the hearing. The ALJ, and the commission in turn, must decide the case based on the evidence introduced into the record at the hearing. If the Initial Determination is not received into the hearing record, it should not be considered in making factual findings. See, Schanandore v. Roddiscraft, Inc. (LIRC, 06/19/92), citing Joseph v. Central Parking (LIRC, 8/20/90). Second, even if the Initial Determination had been introduced into the record, a finding that the respondent had inquired if it couldn't reject applicants with conviction records, without more, would not provide sufficient evidence to prove that Jackson was refused employment because of his conviction record. Although this would certainly suggest a lack of knowledge regarding the law, this alone would not prove that the respondent violated the law, particularly when the respondent flatly denies having ever had a telephone conversation with Jackson in which he told Jackson that the respondent did not hire convicted felons.

Additionally, Jackson complains that the ALJ refused to let him question Squire. The record shows that the reason Jackson wanted to question Squire pertained to her explanation for failing to appear at the originally scheduled hearing. However, the ALJ had previously determined that Squire had shown good cause for the respondent's failure to appear at the original hearing and for this reason refused to allow Jackson to question Squire on that issue. Section DWD 218.18(4) provides the ALJ discretionary authority in assessing whether or not good cause for failure to appear has been shown. The commission does not find that there was an erroneous exercise of that discretion by the ALJ in reopening the hearing in this case.

The commission has also considered various other comments and assertions made by Jackson but find they provide no reason to disturb the ALJ's decision in this case.

 


Appealed to Circuit Court. Affirmed January 7, 2003. Appealed to the Court of Appeals. Affirmed December 18, 2003 (unpublished summary disposition).

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uploaded 2002/02/20